Gold Diggers, LLC v. Town of Berlin, Conn.
| Decision Date | 16 January 2007 |
| Docket Number | No. 06CV732.,06CV732. |
| Citation | 469 F.Supp.2d 43 |
| Court | U.S. District Court — District of Connecticut |
| Parties | GOLD DIGGERS, LLC, and Wayne David Massa, Plaintiffs, v. The TOWN OF BERLIN, CONNECTICUT, Herman Middlebrooks, Jr. and The Berlin Town Council, Defendants. |
Daniel A. Silver, Law Office of Daniel A. Silver, New Britain, CT, for Plaintiff.
Thomas R. Gerarde, Melanie A. Dillon, Howd & Ludorf, Hartford, CT, for Defendant.
RULING ON MOTION FOR PERMANENT INJUNCTION, DECLARTORY RELIEF, AND APPEAL FROM THE DECISION OF THE BERLIN TOWN COUNCIL
This action concerns the defendant Town of Berlin's (the "Town") regulation of sexually oriented businesses ("SOBs") through a municipal ordinance. Plaintiffs Wayne David Massa and Gold Diggers LLC seek entry of a permanent injunction and declaratory judgment in their favor due to asserted violations of federal constitutional rights. Additionally, plaintiffs request this Court to sustain their appeal of the Berlin Town Council's denial of their SOB Application.
For the following reasons, plaintiffs' motion will denied.
The parties have submitted briefs, a stipulation of facts, and supporting exhibits. At a hearing on July 24, 2006, this Court heard testimony from Diana Denning, the operator of Infrared Café, and Wayne Massa. This evidence reflects the following factual background.
Plaintiff Gold Diggers LLC is an assignee of a purchase-sale contract from plaintiff Wayne Massa relative to purchase of the business presently known as "Infrared Café," located at 237 New Britain Road in Berlin, Connecticut. Infrared Café operated as a SOB at this location from February 1, 1997 through February 7, 2006. The owners of the, property at 237 New Britain Avenue are Evangelos and Markella Psillas, who have never operated a SOB at the property.
On January 4, 2005, Diana Denning, as operator of Infrared Café, received a letter from the Town enclosing her license to operate a SOB from January 4, 2005 through January 4, 2006. The letter advised Denning that renewal required submission of an application at least 30 days prior to expiration of her current license.
In June and December 2005, Denning received letters from the Town advising her of violations of the Town's Ordinance that had occurred since January 2005.
On January 13, 2005, the Town mailed a certified letter to Denning at the Infrared Café advising her that she had failed to apply for renewal of Infrared's SOB license, and that she had received written notice of material violations of Berlin's Sexually Oriented Business Ordinance (the "Ordinance") on two occasions during 2005. The letter explained further:
For these reasons your license will not be renewed and your right or privilege to operate a Sexually Oriented Business is revoked as of January 26, 2006. If you fail to terminate the operation of a Sexually Oriented Business on or before this date, further legal action will be taken in accordance with Sec. 14-243 of the Town Code. You have five days from receipt of this notice to file a written appeal with the Town Manager in accordance with Sec. 14-266 of the Town Code.
The certified letter was signed for by an employee at Infrared Café. No written appeal was filed with the Town Manager. Thereafter, defendants considered Infrared's license to be revoked as of January 26, 2006.
On March 29, 2006, plaintiffs completed an application for a SOB. Plaintiffs' application sought approval for a business featuring exotic dancers.
Berlin Town Manager Herman Middlebrooks denied plaintiffs' application based upon the provision in the Ordinance, section 14-291(c), prohibiting SOBs from operating less than 250 feet from any residentially zoned land.
Pursuant to section 14-266 of the Ordinance, plaintiff Massa brought an appeal to the Town Council.
On April 24, 2006, the Berlin Town Council held a hearing on the appeal of the denial of plaintiffs' application. On April 27, 2006, Kathryn Wall, Town Clerk, mailed to Massa the Town Council's written decision, which stated:
The basis for the Council's decision is that the Town Manager, upon the advice of staff and the Chief Zoning Enforcement Officer, correctly interpreted and applied the Sexually Oriented Business Ordinance (Sec. 14-291 and 292) and the Town's Zoning Regulations (Section XI, subsection Y), both of which require a minimum distance of 250 feet between a sexually oriented business premise and any residentially zoned land. The residentially zoned land that lies within 250 feet of 237 New Britain Road makes this location inappropriate for the requested license. The Council rejected the applicant's argument that the Town's Ordinance is invalid.
The instant action, which includes an appeal from the decision of the Town Council, was instituted within twenty days from the date of the written decision of the Town Council.
In June 2000, the Town passed its Ordinance regulating SOBs. Centerfolds, Inc. v. Town of Berlin, 352 F.Supp.2d 183, 187 (D.Conn.2004).
In section 14-241, the Ordinance declares its purpose to regulate SOBs to protect, preserve and promote the health, safety and welfare of the patrons of the public, prevent property devaluement and promote retail trade. The Ordinance refers to the "statistics and studies" performed by other municipalities indicating negative secondary effects associated with unregulated SOBs, including an increase in crime, prostitution, spread of disease and other disruptions to municipal order.
Section 14-242 defines, inter alia, (1) "adult cabaret" as an establishment that "regularly features" nude or semi-nude persons, live or recorded performances "characterized" by the exposure or depiction of "specified anatomical areas;" and (2)"adult entertainment" as "any exhibition" that has a "significant or substantial portion of such performance any performance of specified sexual activities or exhibitions and viewing of specified anatomical areas...."
Section 14-242 provides further that (1) "nudity" means the "appearance of human bare buttocks, anus, genitals, pubic region or the areola or nipple of the female breast ..." or a "state of dress that fails to opaquely and fully cover human buttocks, anus, genitals, pubic region or areola or nipple of the female breast ..."; (2) "seminude" is "a state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast, as well as portions of the body covered by supporting straps or devices ..."; (3) the term "sexual activities" does not include medical, educational or news-related publications or films; and (4) "specified sexual activities" include "[s]howing human genitals in a state of sexual stimulation or arousal; ... [a]cts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio or cunnilingus; ... [f]ondling or touching another person's genitals, pubic region, buttocks or female breasts; ... [l]ap dancing; or ... [e]xcretory functions as part of or in connection with any of such activities."
The licensing scheme codified in section 14-263 of the Ordinance vests the Town Manager with the responsibility "for investigating, granting, denying, renewing, suspending and revoking all sexually oriented business applications and licenses...." The Ordinance requires that all investigation of an applicant and proposed premises shall be completed within 30 days of the application filing date. The Ordinance sets a specific time period of 45 days from the application filing date for rendering a decision on the application.
The Town Manager "shall" issue to the applicant a license to operate a SOB business unless any one or more of the following eleven specific circumstances are present: (1) the applicant is under 18 years of age; (2) the applicant or any person involved in management of the SOB has been convicted of certain crimes within the last three years of the application filing date; (3) within five years of the application filing, the applicant or applicant's spouse was denied a SOB license by the Town, had the license revoked by the Town, or had an uncorrected material violation after written notice from the Town; (4) within three years of the application filing, another municipality or state denied or revoked the SOB license of the applicant or spouse; (5) failure to pay taxes, fees, fines or penalties relative to operation of the SOB; (6) failure to comply with all applicable codes, statutes, ordinances or laws; (7) failure to comply with the Town's locational restrictions for SOBs; (8) failure to provide required information for the licensing application; (9) failure to pay the application fee; (10) granting the application would violate a statute, ordinance or court order; and (11) the applicant, if a limited partnership or limited liability company, is not in good standing under state law. § 14-263(d)
Section 14-264 provides, in relevant part: "Each license shall expire one year from the date it is issued, unless it is renewed upon application of the licensee accompanied by payment of a renewal fee as listed in appendix D to this Code." Section 14-264 provides that "in no instance shall a renewal be issued to a licensee who, within the one-year period of the previous license has had two or more material violations of this article, to which the licensee has received written notice, or had one or more uncorrected material violations of this article pending, for over 30 days."
A SOB license may be suspended for a period not to exceed 30 days if the Town Manager determines that a licensee, operator, or employee "has materially violated any part of this article." § 14-265. Section 14-265 requires revocation in...
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